Question: I am a restaurant owner and we have seen an increasing number of guests with gluten sensitivity.  We offer gluten-free options on our menu to accommodate these guests.  Does that meet our legal obligations?

Answer:  In a recent federal case, the U.S. Court of Appeals found that gluten sensitivity may be a disability under the Americans with Disabilities Act (ADA).

The U.S. Congress enacted the ADA to remedy discrimination against disabled individuals and provide clear, enforceable standards addressing such discrimination. Title III of the ADA provides that no individual shall be discriminated against on the basis of his or her disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. The ADA similarly prohibits employment discrimination on the basis of workers’ disabilities.

In J.D. v. Colonial Williamsburg Foundation the Court of Appeals found that a restaurant violated the ADA when its staff refused to allow a gluten-sensitive child – who was on a school trip with his class – to eat his home-prepared gluten-free meal inside the restaurant because the restaurant’s policy banned the consumption of outside prepared food in the restaurant. Instead, the restaurant manager gave the child three options: 1) Let the chef prepare a gluten-free meal; 2) Eat his pre-prepared meal off of the restaurant property; or 3) Stay inside the restaurant with his class and not eat.

The restaurant was sued and requested that the lawsuit be dismissed arguing it was following health and safety codes that prohibited outside food from being consumed inside the restaurant, that if offered to prepare a gluten-free meal, and that gluten sensitivity is not a disability.

The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”  In analyzing whether gluten sensitivity is a disability, the court emphasized that the only medically accepted treatment for the condition is a strict gluten-free diet, that eating is a major life activity and, as such, that gluten sensitivity could be considered a disability.

The court then looked at whether the restaurant’s actions constituted discrimination.  Discrimination under the ADA occurs when there is a failure to make reasonable modifications in policies, practices, or procedures when such modifications are necessary for a business to afford its goods, services, or privileges, to an individual. Businesses must contemplate three inquiries when determining whether to accommodate an individual:

  1. Is the requested modification “necessary” for the disabled individual;
  2. Is it “reasonable”; and
  3. Would it “fundamentally alter the nature” of the business’ services.

In its analysis, the court noted that the child had regularly gotten sick from “gluten-free” food prepared by restaurant kitchens.  Additionally, this restaurant had previously made exceptions to its rule prohibiting outside food.  The court held that, arguably, bringing a gluten-free meal into the restaurant was necessary for the child; the request was reasonable since it cost nothing to the restaurant; and it could be argued that allowing him to eat the gluten-free meal in the restaurant did not alter the nature of the restaurant’s services.  The Court of Appeals sent the case back to the trial court for further proceedings.

This case highlights that when faced with a customer or employee requesting an accommodation for a disability, it is important for a business to analyze each request on a case-by-case basis.